SPEECH 


OF 






HON. H. P. BENNET, OF NEBRASKA. 


NEBRASKA CONTESTED ELECTION; 


DELIVERED 


IN THE HOUSE OF REPRESENTATIVES, JULY 22, 185G. 



WASHINGTON: 

PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 

1856. 







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NEBRASKA CONTESTED ELECTION 




The Resolutions reported by the Committee of Elections 

in the Contested-Election Case from the Territory of 

Nebraska, being under consideration— 

Mr. BENNET (the contestant) said: I wish 
to notice one thing with which the sitting member 
started out in his speech, and then I will proceed 
with the remarks which I intend to make. The 
gentleman alluded to his residence in the Terri¬ 
tory of NebrasHa. Now I know, sir, that that 
is mere clap-trap talk; but, as he has alluded to 
it, I will answer it. He says: ivhen he went to 
the Territory, thus and so. He went to that Terri¬ 
tory the year that the territorial government was 
organized. He was a candidate for Delegate to 
Congress before he got there. He happened to 
be beaten very badly at that election, and the 
next day after the election he went home to Ohio, 
and we saw nothing more of him. Yes, we—the 
squatters of Nebraska—saw nothing more of 
him until thirty-five days before the election of a 
delegate last November, when he came back into 
the Territory. He had to be there forty days to 
entitle him to vote. He was not a voter, and did 
not vote at that election. Nevertheless, by getting 
all the executive influence of the Territory in his 
favor, he ran a pretty good race; but I beat him. 
That is, I beat him before the people, but he beat 
me before the canvassers —all of whom were my 
personal and political enemies. 

One word further in reference to this matter. 
For the purpose of serving a notice upon the sit¬ 
ting Delegate that I intended to take testimony to 
use in the contest for his seat, I wanted to serve 
him with a notice of the time and place of taking 
the testimony, under the law of 18.51, and I in¬ 
quired of him last January, in that lobby, where 
his residence was, in order that I might serve a 
notice upon him at his place of residence. In 
truth, he did not know where it was; and I could 
not serve a notice at his residence in the Terri¬ 
tory, because he had none there. It will be 
shown, in my further argument, that that fact 
worked a great hardship to me. 

Mr. Speaker, I rise mainly for the purpose of 
protesting to this House against the unprecedented ' 


introduction of ex parte affidavits as testimony 
in this case; after which, I may say something 
upon the merits of the case. Upon that, how¬ 
ever, I shall be brief, leaving it to be taken care 
of by the committee who have the case in charge. 
I will at once enter upon my subject. 

I object to all expar/e testimony in the case; and 
I particularly object to the four exparte affidavits 
upon which the minority report is based; and 
first, because it is ex parte; second, because it 
never was presented to the committee—only to the 
minority; and third, because it was not shown 
or known to me to exist, until long after the 
majority report was printed. And again, because 
they were made by my political and personal 
enemies, without any notice whatever to me, not 
only not in accordance with law, but in direct vio¬ 
lation of the statutes of 1851; and because it in¬ 
troduces into this controversy points which I had 
not understood as being in the controversy at my 
and by his not raising them in his answer to all; 
notice to him of intention to contest the seat, nor 
in any of his printed arguments before the com¬ 
mittee, nor in any of his conversations before the 
same and to me, I understood as being waived by 
the sitting Delegate, and tacitly admitted. And 
fourth, I object to these affidavits because they 
contain misrepresentations, prevarications, and 
falsehoods. 

Let us briefly examine these objections. 

And first, I object to these affidavits, because 
they are ex parte. 

Since the minority report, and these affidavits 
accompanying, were printed, and distributed to 
the House, (the first notice I had of their exist¬ 
ence,) I have examined the precedents which have 
heretofore governed this House, and nowhere do 
I find anything to authorize or to justify the in¬ 
troduction of such testimony. I will briefly refer 
to a few of the cases, where the thing has been 
brought in question. 

In the case of Spaulding vs. Mead, book of Con¬ 
tested Elections, page 158, it was held as follows: 

“ The petitioner offered depositions to prove that the 
cause of the failure in the transmission of the returns from 








4 


tlie three last counties within the twenty days after the 
election, &c., was a hurricane, that rendered the roads im¬ 
passable ; but as the sitting member vas not notified to be 
jyrescnt at the talHng of those depositions, the committee were 
of opinion that they ivere not admissible in euidencc.” 

And this decision of the committee was con¬ 
curred in by the House. 

The same rule was also laid down in the case 
of Jackson vs. Wayne, from Georgia, on page 49. 
In the case of Michael Leib, on page 166, it was 
held that ex parte affidavits were not admissible 
in evidence,” and so determined by the House, 
without debate or division. In the argument of 
Mr. Tracy, in the case of Lyon vs. Smith, he 
plainly discriminates between “ legal proof ” and 
exparte affidavits, and his positions were not con¬ 
troverted by any one at the time nor since: see 
also page 118, where the rule there laid down 
“ required that notice should be given by each 
party of the time and place of the taking of testi¬ 
mony by deposition^’ 

Again, in the case of McFarland vs. Purviance, 
page 131, it was held, that notice to take, testi¬ 
mony must be served on the opposite party agree¬ 
ably to the laws of 1797 and 18U0—which, by the 
way, in that respect, are similar to the present act 
of 1851, under which we are now acting. 

In the case of Turner vs. Bayliss, on page 237 
it was required “that notice to the opposite par¬ 
ty should be given,” and that testimony was 
properly taken, notwithstanding the sitting mem¬ 
ber declined to be present, “ he having been duly 
notified.” 

So also on page 521, in the case of Loyall vs. 
Newton, from Virginia, a notice to the opposite 
party was held to be an “ essential requisite ” in 
taking depositions. 

In no single instance on record that I can find, 
either before this House or before courts of law, 
has it ever been held that ex parte affidavits 
could be received as testimony without the con¬ 
sent of the opposite party, and even then with 
great caution. 

I object to the introduction of this ex parte tes¬ 
timony, also, because it alleges and brings into 
the controversy an averment that the polls at the 
town of Archer and Pawnee precinct were not 
legally constituted polls. 

These objections the sitting Delegate did not 
raise in his answer to my notice of contest, (see 
his answer on page 59 of the majority report;) 
and I submit, sir, that as he attempted to follow 
the act of Congress of 1851, concerning contested 
elections, by answering my notice, and therein 
setting out his whole defense, and thereby mak¬ 
ing an issue upon which, by regulations of that 
same statute, both parties were to take testimony, 
that he should be judged by that statute, and be 
precluded at this late day from raising other 
points than those set out in his answer; and that 
he should be confined to taking his testimony in 
the manner prescribed by that law. 

And secondly, I object to the time and manner 
of the introduction of these affidavits. 

It will be seen, by reference to the majority 
report, that the sitting Delegate appeared before 
the Committee of Elections and made a written 
argument. Before doing that, however, he pre¬ 


sented his testimony, and, ua I understood, and as 
I believe the committee understood it, all of his 
testimony. And having previously submitted all 
of my testimony and an opening argument to the 
committee, Mr. Chapman replied. To all appear¬ 
ance it was the conclusion of diis testimony and 
his arguments to the committee. He does not 
ask in that reply for further time to take testi¬ 
mony, or for the introduction of any that he had 
in possession at the time, and had not previously 
submitted, but wound uj) his argument and sub¬ 
mitted his case by saying: “ For t% foregoing 
reasons, and for others stated in my answer to 
contestant’s notice, &.c., I claim to be the legally- 
elected Delegate from Nebraska, and ask that 
contestant’s memorial be dismissed;” thereby 
showing, so far as he was concerned, that the case 
was closed before the committee. After which, 
to wit: on the next day, the 18th day of March, 
I made my concluding argument to the committee, 
and thereupon it was officially announced to me 
in the committee-room, by the chairman, that the 
case, so far as the parties were concerned before 
the committee, was closed. 

Judge, then, of my surprise when, on the 16th 
of May, nearly two months after the case was 
closed, and, as I supposed, like a case at law, 
finally submitted to the committee to find a ver¬ 
dict upon, I was shown this minority report, with 
the four extraordinary ex parte affidavits printed, 
and accompanying it. I submit, sir, that it is a 
parallel case, and that it works as great injus¬ 
tice to me, and is virtually as great a wrong to 
my legal rights here to allow these ex parte affida¬ 
vits any place or weight in determining my rights 
before this House, as it would be in a trial at law 
to allow the defendant, unknown to the plaintiff, 
to go before the jury with affidavits after they had 
retired to make up their verdict. 

Let it be borne in mind that I had no notice of 
the time and place when and where he would take 
these affidavits; and let it be remembered, that 
either in person, or by my acknowledged attor¬ 
ney, I was in the immediate vicinity of the places 
at the time these affidavits purport to have 
been taken, and could have been notified as well 
as not, had he wanted me present to cross-ex¬ 
amine his witnesses; that the whole transaction 
concerning the affidavits was kept a profound secret 
from me up to the time the minority report was 
made and printed, notwithstanding some of the 
affidavits were taken months before; that one of 
them was taken before A. J. Poppleton, Mr. 
Chapman’s attorney,as I believe; that they were 
all made by my political opponents, and two of 
them by my personal enemies,and then you will 
not wonder at my surprise at their announcement, 
or my protest to their reception. 

But 1 pass on to notice, in the third place, the 
objections founded on their misrepresentations, 
prevarications, and falsehoods. 

Mr. STEPHENS, (interrupting) That the 
House rnay not be under any misunderstanding 
abou tthis, I will repeat what I have stated before, 
that most of the testimony relied on by the con¬ 
testant himself was ex parte. 1 call attention to 
page 34 of the majority report: 

“ Depositions of William P. Whitaker and Benjamin F. 

















5 


Leacliman, vvlin voluntarily appeared, and were fsworn, 
and examined before me, Mastiii W. lliden, recorder of 
Nebraska (-'ity, in the county of Oto(5, in the Territory of 
Nebraska, at the house of John C. Miller, in the county of 
Richardson, in said Territory, on the 19ih day of February, 
in the year of our Lord one thousand eight hundred and 
filly-six, pursuant to the within commission to me directed, 
authorizing me to lake the depositions of witnesses in the 
above entitled cause, wherein the election of llird H. Chap¬ 
man, as delegate aforesaid, is disputed by Hiram P. Rennet.” 

These are ex parte affidavits: and as to most of i 
the testimony which the contestant himself of-1 
fered there was no notice at all to the sitting 
Delegate. 

Mr. BENNET. The gentleman from Geor¬ 
gia says he was absent at the time the majority 
report was made, and he wiM^nd that he is a little 
absent also as to the report itself. If he will 
examine that report, he will see that I gave to the j 
sitting Delegate notice of the time and place when i 
and where 1 would take the depositions of these j 
witnesses. I tjave the sitting Delegate the notice 
here in this House. It will be. found in the ma¬ 
jority report with his acknowledgment of the 
receipt of such notice. I will further say, Mr.! 
Speaker, that I did not carry my testimony in my 
breeches pocket until I got up to make a speech 
as the sitting Delegate has done with most of his. 

I submitted my testimony to the committee in 
March last. It was published on the 18th of 
April, and spread before the House in the ma¬ 
jority report. It was not kept back by me, and 
sprung upon the House at the last moment. If 
the gentleman has any further question to ask 
me I am ready to answer him. 

Mr. STEPHENS. I ask the gentleman whether 
the sitting Delegate ever received any notice of | 
these depositions of William B. Whitaker and I 
Benjamin F. Lcachman.^ 

Mr. BENNET. I will read the notice given 
to the sitting Delegate: 

“ To the Hon. Bird B. Chapman ; 

“ Sir : You will please take notice, that it is my inten¬ 
tion, on the 19th day of February, A. D. 1856, at the resi¬ 
dence of John C. Miller, at the town of Arclier, in tlie 
county of Richardson, in llie Territory of Nebraska, before 
Mastin W. Kiden, recorder of the city of Nebraska City, in 
said Territory, between the hours of nine o’clock, a. m. and i 
five o’clock, p. 111 ., and continuing from day to day until all | 
are taken, to proceed to take the depositions of sundry per¬ 
sons toucliiiig the case of iiiy contest of your seat as Delegate 
to Congress from the Territory of Nebraska, to wit: Zeno 
Russell, Houston Nuckolls,” &c. 

Here follow the names, times, and places of 
witnesses, whom 1 propose to examine. 

Here, too, accompanying, are the certificate of j 
Mr. Miller, of this city, and the acknowledgment' 
of the silting Delegate: ! 

I certify that 1 have this day deposited in the post-office of 
the House of Reprcsenlatives of the United Slates, a copy of: 
the within notice, directed to Bird B. Chapman, at twenty 
minutes to one o’clock, p. m., 15th dav of January, 18.‘)6. 

JAMES J. MILLER. 

I acknowledge the receipt of a copy of the above, this 
15th day of January, 1856. 

BIRD B. CHAPMAN. 

.. Mr. STEPHENS. That is as to the deposi¬ 
tion of Zeno Russell. But is there any notice there 
of intention to lake tlie depositions of William P. 
Whitaker and Benjamin F. Leachmun.^ 

Mr. BENNET. Mr. Speaker, the gentle¬ 
man from Georgia has not quite got me yet. I 

« 


gave the sitting Delegate notice that 1 siiould take, 
the depositions of the judges of election of the 
Archer precinct; and I think, if the gentleman will 
examine, he will find that William B. Whitaker 
was one of the judges for that precinct.^ It is true 
that I gave notice of my intention to examine 
other men that I did not examine; but that was 
my business, and something of which the gentle¬ 
man had no right to complain. 

Taken by complete surprise as I was by these 
affidavits,it cannot be expected of me that I should 
have as ample means of defense against them as 
I could have had with more time to prepare; and 
I am necessarily, under the pressing circum¬ 
stances, co?npe//ed to resort'to the affidavits them¬ 
selves, in connection with some collateral matters 
of history, &c., to show up the misrepresenta¬ 
tions and falsity of the same. 

In the first place, I will direct your attention to 
the affidavit of Paris G. Cooper. It was made 
on the 15th day of last November, at Omaha City 
—between the day of election (the 6ih) and the 
day of the territorial canvass, (the 2.3d.) You will 
notice also, that the affiant states he is a resident of 
Cumming City, in Washington county, and that 
he alludes also to a “Jig/H” which occurred at 
Fort Calhoun, in that county, in which one Davis 
figured to some extent. These facts have some¬ 
thing to do in determining the amount of bias in 
the affiant’s mind, aud in showing that he had a 
personal interest at stake in the statements he 
was making, as well as a feeling of bloody hos¬ 
tility against the people of De Soto, my supporters. 

There was a fight” at Fort Calhoun late last 
summer, as the affiant says, and the facts, in 
short, are about these: Davis jumped” (as the 
squatters term it) the city of Fort Calhoun, the 
county seat of Washington county, which at the 
time had not an inhabitant in it, anc^ but one log 
cabin; into this Mr. Davis moved with .his family, 
with the determination to hold the claim—with 
what degree of right so to do it is not necessary 
for me here to say. The oioners of the town, some 
of whom were not residents of the county or Terri¬ 
tory, attempted to put him off the place by law; 
but they did not succeed. Davis beat them at law. 
A few weeks after the law suit, the owners of 
the town site, with their friends and neighbors, 
to the number of about thirty, most of them 
armed, proceeded to Fort Calhoun, with the 
avowed intention of putting Davis off by force. 
In the mean time, Davis, having heard of this 
force coming against him, hastily called in a few 
of his friends, most of whom were from De Soto, 
to the number of fifteen or twenty, and resolved 
to defend his “ castle” against the assailants. In 
due time the assailants appeared before the city, 
and in somewhat military style marched up to 
Davis “ castle,’’and “ invested” it. Ashort con¬ 
versation sprang up between the respective par¬ 
ties, some of whom were personal friends; where¬ 
upon (and it is not known by which it was first 
begun) a firing commenced between the parties. 
Several shots were fired on both sides; the result 
of which was, that a Mr. Goss, the captain of 
the assailing party, and a very estimable man, 
was shot dead on the spot, and several other 
persons badly wounded. The assailants were 




















6 


repulsed, one rriv^n killed, and several wounded on 
both sides. Whether Mr. Cooper, this affiant, 
was in this battle with the assailants I cannot 
say; but this I will say, that he was with that 
party in sympathy and interest. 

The effect of this border-fight in that county 
was to divide the people into two hostile clans, 
members of either of which for weeks afterwards 
carried arms, expecting and fully prepared for an 
encounter with his antagonist. This feeling was 
to a great extent kept up between the Davis or 
De Soto party, as it was called, and the Fort Cal¬ 
houn party, until the election. Fort Calhoun is 
in the lower part of Washington county, and 
Cuming city is at the upper end—De Soto is be¬ 
tween tlm two. At the election last November 
the De Soto party brought out candidates for 
county and legislative officers against Cuming 
City and Fort Calhoun. And to heighten the 
feeling between these two already over-heated 
parties, there entered into the election the ques¬ 
tion of getting all the county officers and mem¬ 
bers to the Legislature elected from De Soto, 
with the intent to remove the county seat from 
Fort Calhoun to that point. The election came 
on, and it was very close between these two con¬ 
tending parties; the result, however, was that the 
De Soto party had three or four the most votes, 
and elected their men. The returns from De Soto 
were made to the register of deeds of the county, 
who was of the Fort Calhoun parly, and on 
whom devolved the duty under our law, as the 
office of judge of probate for that county was 
vacant by the recent resignation of Judge Cass, 
to assume the duties of that officer—call to his aid 
three householders, and canvass the vote for terri¬ 
torial officers, &c., and give certificates of election 
to the county officers, &c. 

Now, I ask, is it reasonable to suppose that 
this board of canvassers, all of whom were 
of the Fort Calhoun party in sympathy and in¬ 
terest, with their blood not yet cooled from the 
recent bloody affray at Davis’s house, with the 
excitement of a warm election yet upon them, 
and with their moneyed interest at stake in keep¬ 
ing their own party in power, and the county 
seat at their own town—if they would not have 
refused certificates of election to the De Soto can¬ 
didates, who were elected by only four or five 
majority, if the least fraud had been known or 
suggested by or to them ? 

By the way, this same affiant, P. G. Cooper, 
was a candidate himself for the Legislature. 
This affidavit was made on the next day after 
the vote in his own county was canvassed, by 
which it was ascertained that he was beaten but 
a few votes; and was he not directly interested, 
as a discomfited candidate, in throwing discredit 
on the De Soto votes, as their rejection would 
elect him—it being his intention at the time to 
contest the election of his opponent to the Legis¬ 
lature. His pride and his cash were both at 
stake in what lie was stating. Certain it is that 
the De Soto vote has been passed upon twice in 
the Territory, by persons who fain would have 
found some defect in it—once before the Fort 
Calhoun canvassers, and again before the Legis¬ 
lature, in the contested cases from that county, 


and it has come out unscathed; and 1 am con¬ 
vinced that this body, with a certified copy of 
the poll-book before them, after taking into ac¬ 
count all these accompanying circumstances, will 
not allow the affidavit of an interested person, 
however worthy of credit he may have been in 
Virginia or elsewhere, to overthrow it all, and 
to stifle the voice of over forty freemen at De 
Soto—certainly when that affidavit was taken 
without notice to me. 

With regard to the statements of P. C. Sulli¬ 
van, I shall have but little to say—I know but 
little of the man. He succeeded in being elected 
Speaker of the House.of Representatives of Ne¬ 
braska; but he conducted himselfso badly, that on 
his retiring, the usual complimentary resolution 
of thanks was offered to the House, and because 
of his bad standing, as I was informed liy a mem¬ 
ber of that body, it had but little support, and 
was finally rejected by a large majority of the 
House. It strikes me his testimony, coming as 
it does in such an unusual form, should have 
something to sustain it. 1 do not believe that 
either he or Cooper have stated a thing; but what, 
by cross examination, would have appeared in a 
very different colored dress. But the privilege 
to cross-examine this witness or any other of 
the sitting Delegate’s witnesses was denied me— 
a privilege which I believe is not denied even to 
criminals to confront the witnesses against them. 
The gentleman will not say I am a criminal; I 
am only a contestant. 

But i pass on to the affidavit of the honorable 
J. L. Sharp. Before I do so let me allude to the 
fact, that I made every effort under the law of 
Congress to procure proper testimony by deposi¬ 
tions, with notice to my opponent of the election 
in Washington county as well as at Omaha City; 
but from certain causes beyond my control they 
failed. In connection with this point I will read 
an extract of a letter from my attorney: 

“ Council Bluffs, Iowa, January 28,1856. 

“ Friknu Bennet: I received on Saturday last the pack¬ 
age in relation to the depositions in your case; but the no¬ 
tice to serve on Chapman, if you sent it, had been extracted 
from it. The end of the envelope was torn open when I 
received it from the post office, and I su.s|)(!ct foul play. 
But I will go to Bellevue, see Judge Ferguson, and if he 
will act, proceed to take depositions, and forward them to 
you witliout the notice. 1 am satisfied they will not be 
iegal without it.” 

These are the causes of the failure on my part 
to take depositions, relative to Washington coun¬ 
ty returns, and the illegal voting at Omaha City. 
They were causes over which I had no control. 

Had I succeeded in taking these depositions, 
as I made every effort to do, or bad 1 resorted to 
ex parte affidavits for proof as the sitting Delegate 
has done, I know 1 could have shown a great 
number of illegal votes cast for him at Omaha 
City, and at least as many at the other precincts 
in the Territory, as he alleges were there cast for 
me. 

Let it be borne in mind, that at Omaha City, 
Mr. Chapman received more majority over me 
than he did at every other jirecinct in the Terri¬ 
tory combined. This fact taken in connection 
with others—that there was a body of some 
seventy-five or eighty Irish at this place —that 











7 


tfjcy are usually clannish at elections—that they 
came from Keokuk, Iowa, to labor upon the Cap¬ 
itol building—that Cuming had a controlling in¬ 
fluence over these men—that the Secretary was, 
and is, and ever has been, politically in opposi¬ 
tion to me, and I to him—that I was charged by 
the Administration organ at Omaha City with 
being a Know .Nothing, a fact of itself sufficient to 
get the opposition of every foreigner in the coun¬ 
try—all tend to prove that the whole Irish vote 
at this city went in a body against me, and for 
Chapman the pet candidate of the Administration 
party in the Territory. Seventeen of these votes 
to my certain knowledge were illegal; anu I be¬ 
lieve that Jjftij would not cover all the illegal ones 
given to him at this place. I counted the names 
of seventeen of these foreign voters on the clerk’s 
record, who had made application for their ^^first 
papers” of naturalization within ten days before 
the election. These things I would have shown 
by deposition, but for the unexpected failure to 
take them, owing to causes which I have before 
shown. I could have shown these facts by ex 
arfcaffidavits had I dreamed such evidence would 
e admitted by this House. 

But 1 pass on to the notice of J. L.Sharp’s affi¬ 
davit. It is a recent thing, having been made in 
this city on the 8th of May, some three or four 
weeks after the majority report was made and 
printed. It also proves itself to be an after¬ 
thought on the part of Mr. Chapman; for, as 
I have before shown, it raises new points and 
brings them into the controversy, points which 
he did not allude to in his answer to my notice 
of contest, which was the proper time to make 
up the issue between us. It is brought into the 
contest at this late hour as a kind of reserve 
force both in pleadings and proof, to cover up all 
defects and omissions in both. 

Let us examine it first in reference to the pre¬ 
cinct of Archer. The deponent states that the 
judge of probate refused to give notice of an 
election, to be held at this precinct, and that this 
refusal was in consequence of his belief that 
Archer was on the half-breed lands. How does 
this statement corroborate with other facts in the 
case ? 

The town of Archer was and is the county seat 
of Richardson county—it was named as a pre¬ 
cinct even by the Governor in his proclamation, 
who labored under the error that these lands were I 
excluded from the Territory; and the judge of 
probate canvassed the vote of this precinct as 
well as of Salem and Pawnee at the county can¬ 
vass, and issued certificates of election to county 
officers, based upon the regularity of this pbll. 

These facts, I think, arc sufficient to rebut the 
discredit which Sharp’s affidavit tends to throw 
upon the regularity of the vote at this precinct. 
And right here I beg to correct the gentleman 
from Georgia, [Mr. Stephens.] tie assumes, 
as I understand him in his argument, that this 
affidavit of Sharp shows that there w'ere no judges 
appointed there. I point him to the affidavit of 
Sharp; and what does Sharp state-.^ Mark you 
this: deponent does not state that there were no 
judges of election appointed. He only says, ^‘they 
were appointed informally h\xi does not give us 


the benefit of any/«c<s to show in what that in¬ 
formality consisted . Why does he* not give the 
/rtcfs, and let this House draw the conclusions.^ 
The reason to me is very apparent; it is because 
the/acts will not justify his conclusions, and he 
wishes to keep them from the Plouse-, and force 
on it a false conclusion. If this was not a legally- 
constituted precinct, why did this deponent and 
his whole family presume to vote at it.? Why did 
they not then denounce it, and refuse all counte¬ 
nance to this infringement on sacred rights? The 
truth is, this prevarication and falsehood by this 
deponent would never have been thought of, had 
he succeeded in carrying for Mr. Chapman a 
majority of the votes at this precinct. The only 
witness whose deposition I took in the county 
voted, and he voted for Chapman. I did not taka 
the testimony of a single witness who I know 
voted for me. I carried the war into Africa, and 
I found allies there to sustain me. I took the 
testimony of Whitaker, who voted for Chapman. 

Let it be borne in mind that Sharp is a willing, 
a swift, and a lo.ng-winded witness, having come 
from the Territory, two thousand miles off,mainly 
for the purpose of devoting to the sitting Delegate 
the benefit of his counsel and his oath. Pardon 
me for using the word; but Sharp honey-fuggled” 
around me. He came to me, and stated that 
Chapman w^anted him to make an affidavit, but 
that he would rather not do it; that he had declined 
doing it; and thus he misled me and threw me off 
my guard, and then a few days afterwards he^ 
makes this affidavit, gets on board the cars, and 
left the city for western Iowa, to pull wires in 
politics to secure his own election to the Iowa 
Legislature; at the same time claiming a residence 
in Nebraska, and holding two commissions of 
office in that Territory. Such is the omniverous, 
unscrupulous Sharp, Mr. Chapman’s portable 
witness. He made this affidavit in this city, 
without permitting me to be present to question 
him; and shortly after he made it, on the eve of 
the trial, he “sloped” for the West, no doubt 
chuckling over the imagined excellent service he 
had rendered his political and personal friend, 
Chapman, and the injury he had done to me, hia 
political and personal enemy. I knew nothing 
about it until the minority report was printed. 
Neither did I know the first breath about these 
three ex parte affidavits accompanying it. Now, 
I address myself to the candor of every gentleman 
in this House, and particularly to every lawyer, 
whether my legal rights ought to be determined 
upon by this ea; parie evidence? Is it right, inde¬ 
pendent of law; and coming down to law, is it 
legal? Are gentlemen willing to commit them¬ 
selves to this doctrine, that ex parte affidavits, 
introduced at the last hour of the controversy, 
can govern and control contested elections? But 
I pass on. 

There is no point in the objection to the voters 
on the half-breed lands, because those squatters 
refused to pay taxes. There has been much stress 
laid by the gentleman from Georgia [Mr. Foster] 
upon the fact that these gentlemen refused to pay 
taxes. Let us examine it for a moment. This 
refusal to be assessed and to pay taxes was general 
all over the Territory, and came from the fact, 















8 


that there was no law authorizing an assessment 
of property anywhere in the Territory. At the 
last session of the Legislature, they passed an 
enabling act to legalize the previous year’s assess¬ 
ment and tax, which proves my view of this point. 
These men upon the half-breed tract never refused 
to pay taxes, any more than any others in the 
Territory; and if they were disfranchised by the 
proclamation of the Governor before they were called 
.on to pay taxes, it was not done by any law of 
the Territory, or by any law of the United States. 
Taxation without representation, of course, being 
freemen, thesi^ men would not stand. There 
were fifty of the^e men, according to the procla¬ 
mation of the Governor. What does Sharp say 
about it? He says there were only nineteen. 
Was there nothing wrong in the proclamation of 
the Governor ? Perhaps Sharp and the Governor 
are both a little wrong. I think so. The Gov¬ 
ernor says there were fifty voters living there; 
granted. These men, in common with the rest 
of the county, went on and elected a member to 
the Legislature — the Flon. Thomas R. Hare. 
He went up from Richardson county as the rep¬ 
resentative of these fifty disfranchised voters, and 
the Legislature gave him his seat. The House of 
Representatives decided that the votes of Archer 
and Pawnee were legal, and that this man was 
entitled to a seat. 

The people on this half-breed tract are a peace¬ 
able and law-abiding people. They settled upon 
this tract innocently and honestly, believing 
they had a right to do so. They have offered vio¬ 
lence to no one; and when, this last winter, they 
were notified that the lines of this “ tract” were 
defined by a late survey, and that they were 
“ trespassers” on the property of the half-breeds, 
they were the peaceable citizens to pack up their 
household goods and voluntarily turn themselves 
out of their pleasant homes. They left their ex¬ 
tensive farms to grow up again in their primi¬ 
tive wildness; as orderly and law-abiding citizens, 
they peaceably left the tract to the enjoyment of 
its legal owners, the half-breeds. They were 
trespassers I admit, but they were innocent tres¬ 
passers; and as soon as they were notified that 
they were trespassers they left. Now I ask 
gentlemen if the law of the United States does 
not punish them sufficiently ?—is not $500 fine, or 
imprisonment for three years sufficient. Is that 
not enough without subjecting them to the loss 
of their elective franchise? If disfranchisement is 
the penalty of any law, either of the Territory, 
or of the United States fof trespassing, I would 
like to be shown it. Suppose “A B” was a tres¬ 
passer on “ C D’s” “ claim,” which is just across 
the line of this half-breed tract, would the fact of 
his being a trespasser against a white man dis¬ 
franchise him ? If not, then why should it be so 
when he commits a trespass against an Indian ? 

I submit, that this is a parallel case to the other. 
The one is a trespasser on a private claim; the 
other a trespasser on the lands of the half-breeds. 
In the one instance, the man who settles down 
upon a private claim would, by the laws of the 
land, be removed, and punished by fine—not by 
imprisonment; and in the other case — settling 
upon the half-breed tract — he is punished by 


removal, and by fine and imprisonment; and in 
neither case by being disfranchised. 

If you say they were not included in the limits 
of the Territory by provision of the first section 
of the organic law, then I will ask you for “any 
treaty stipulation” by virtue of which this tract 
was not to be included within the jurisdiction 
of the Territory? In the absence of such treaty 
stipulation —and who can produce it?—I say he 
who runs may read in that first section, that this 
tract is “ included” in the limits and jurisdiction 
of the Territory. And, notwithstanding persons 
goingipn to this tract will be trespassers under the 
act of Congress of 1834, yet, whilst they remain 
there, as in the case of the trespasser on the 
“ claim of C D,” they would be voters until 
removed from thence by process of law. 

Mr. STEPHENS. Will the gentleman here 
allow me to call his attention to a matter ? I 
understood the gentleman awhile ago, when I 
called his attention to the fact, that the depositions 
of Mr. Whitaker and others were taken without 
notice—to say that it was covered under the gen¬ 
eral notice that he would examine the three judges. 
I wish to know if these gentlemen occupied that 
position ? I ask the gentleman to show me where 
there is evidence in any of this testimony that 
they were judges ? 

Mr. BENNET. If the gentleman would take 
a little trouble and examine these affidavits, he 
would see that the fact is not only stated there, 
but I believe it is stated in the affidavit of J. L. 
Sharp, which will not be disputed by the gentle¬ 
man. 

Mr. STEPHENS. No sir; it is in neither. The 
affidavit is, that they were canvassers—an office 
very different fi*om that of judge. On page 35 
of the majority report Whitaker swears: 

“ Interrogatory third. State whether or not there was an 
election held in Richardson county, in said Territory, on 
the day above named, at which votes were oast for Dele¬ 
gate to the Thirty-Fourth Congress of the United States, 
from the Territory of Nebraska ? 

Answer to interrogatory third. Tliere was. 

“ Interrogatory fourth. State who were the canvassers of 
the votes cast at said election ? 

“Answer to interrogatory fourth. Benjamin F. Leach- 
man, George W. Miller, and myself.” 

Now 1 tell the gentleman and the House that 
there was.no notice to the sitting Delegate that 
any such men, either by description of character 
or by name, were to be examined; and, so far as 
they are concerned, it was an ex parte examination 
from beginning to end. 

Mr. BENNET. I will state that these men 
have used a different name for the same office. 

I The judges of election are the canvassers of the 
I county votes. 

Mr. STEPHENS. If that be true, there is 
still a great mistake, because the judges of elec¬ 
tion were different men, and I have their names 
here. 

Mr BENNET. I will say right here, that I 
gave the sitting Delegate notice of the time and 
j place. That is, perhaps, the most essential re- 
j quisite in the matter. I gave him proper notice, 
j under the law, of the taking of the testimony. 

1 The essential requisite in this matter is the time 
and place. Of that I gave him notice. Did he 










9 


do so with me? Did he give me notice of the 
time and place that I miglit cross-examine his 
witnesses ? * 

Mr, STEPHENS. I wish to say a word in 
answer to all that part of the gentleman’s argu¬ 
ment as to ex ^larle testimony. Here was Mr. 
Sharp in this city. It is well known that the 
sitting Delegate wished to have him examined by 
the committee. I suppose that will not be dis¬ 
puted. Did that show any disposition on the 
part of the sitting Delegate not to have the tes¬ 
timony taken? But the gentleman says it is 
ex parte. 1 refer to his own record to show that 
part of his testimony is also ex parte. The very 
testimony on which the gentleman relies, when 
you come to it and sift it, shows that it is of the 
same character. Time and place are not so im¬ 
portant to be known as the name of the person 
to be examined. 

Mr. WASHBURN. I will say this: that this 
testimony was before the committee, and under¬ 
stood to have been taken on notice; and we know 
that the sitting Delegate did not object to it. 

Mr. BENNET. Let us discriminate between 
his testimony and mine. The sitting Delegate 
had due notice of the time and place when and 
where my testimony was to be taken. It was 
sent in according to the law of 1851, filed at the 
Clerk’s desk, and by the Clerk presented to the 
committee before ever I saw it or heard what it 
contained. It was handed, as I am informed, by 
a member of the committee, to the sitting Del¬ 
egate, that he might examine it; he did so, and 
raised no objection whatever to it; and I submit 
right here, sir, that even ex parte affidavits, if 
they are admitted by the opposite party, are Idgal 
testimony. I believe that such is the rule, even 
in courts of law; and so it has been held in this 
House. The gentleman has therefore virtually 
admitted my testimony, notwithstanding the gen¬ 
tleman from Georgia wishes—tries to find fault 
with it. At the very earliest opportunity offered 
me, I objected in toto to these four affidavits of 
the sitting Delegate; and if an opportunity had 
been afforded me in the committee, I should have 
olnected to them there; this is the first opportunity 
I have had. But I pass on. 

If the votes thrown by these persons who were 
residents on this half-breed land really form a part 
of the seventy-six votes returned for me from 
Richardson county, contrary to the certificate of 
the probate judge,and if the Praonee precinct was 
not identical, and the same place as the precinct 
at Henry Abrams, why did not Mr. Chapman 
appear at Archer at the time I notified him that 
I should take testimony there, and prove by this 
witness. Sharp, or the judge of probate, or some 
one else, his view of the case? But, no, he did 
not appear there; it would not have answered his 
purpose to do so; his view of the facts could not 
have been established in that way; and he resorts 


‘Whitaker’s testimony was only concerning the vote 
there being cast (or Hiram P.,atid not “ Henri P.” Pennet. 
ft had notliing to do with tlie hall'-hreed question. His 
testimony t\nis imt material, as Cliapman admits in liis an¬ 
swer, what Whitaker’s deposition tends to prove. Hence, 
e.Tcluding Whitaker’s aliidavit, it cannot atfect the case in 
tlic least. 


to another mode of procedure# My old enemyj 
Sharp , comes on here about the time the majority 
report was made; and after looking over ail my 
printed testimony, and the majority report, and 
conning it over three or four weeks, he fixes up 
a state of facts just sufficient to carry his friend— 
the sitting Delegate—through, swears to it in a 
corner, and then takes good care to leave the city 
before it was possible for me to know what he 
had done. 

The judge of probate, (also my political oppo¬ 
nent,) who canvassed the vote of the county, knew 
very well what was intended by Pawnee precinct. 
The Governor intended the house of Henry 
Abrams, and the judge of probate knew it to be 
so, voted there himself, and considered ita legally- 
constituted poll by canvassing it. There was 
no such place as Pawnee jirecinct distinct from 
Henry Abrams, and there was no such toicn in 
Pawnee county as the town of Pawnee, at which 
this deponent would fain have us to believe the 
Governor called the election. Pawnee county is 
attached to Richardson for judicial and election 
purposes; they are one and the same district, so 
far as jurisdiction is concerned. The law con¬ 
templates them as the same territory or county; 
and even the judge of probate for Richardson 
county did at and before the election actually re¬ 
side in what will, when it is set apart, be in 
Pawnee county; and I do solemnly affirm that, 
soTar as the deponent discriminates and avers 
that the house of Henry Abrams is not the Pawnee 
precinct designated in the proclamation of the 
Governor, it is basely false. This I say in full 
view of a responsibility to ansioer for it to the 
deponent, and to the people of that county. 

It seems, further, that, of the forty-seven votes 
cast at the Jlrcher precinct, where this deponent 
pretends to reside, and where he voted, he, with 
all his efforts against me, did not succeed in poll¬ 
ing a vote against me, save one, outside of his own 
family relations—the Sharps, and the Trammels, 
That one vote was Whitaker’s, whose deposition 
I took after notifying Mr. Chapman to be present 
to cross-examine, but which it seems he declined 
to do. Does this absence of influence on the part 
of Sharp arise from the fact, that deponent’s 
character is best known by his own immediate 
neighbors and associates ? Is it not a little strange 
that, out of the forty voters outside of the depo¬ 
nent’s family, he-did not succeed in securing but 
one against me; and does it not look as though 
the people of that precinct were inclined to believe 
the open charges of bribery and corruption I 
made against deponent on the stump at that place. 
No wonder, then, that it was important this irre¬ 
sponsible and extraordinary affidavit should have 
and require, before it was passable, a responsible 
indorser. 

Here it is; (minority report, p. 11:) 

Senate Chamber, United States, May 9,18.^8. 

I have been iiuiinately wi'll acquainted with the Hon. 
Joseph L. Sharp, who has signeit the foregoing affidavit, 
evei'Since the inontti of December, 1852, when he served 
as a member of the Legislature of Iowa from the county 
of Mills. My intercourse with Colonel Sharp, and the opin¬ 
ion of him entertained by the people of Iowa, with whom 
he resided, justify me in the conviction that his statement* 
are worthy of full credence. Every reliance, in luy opin- 













10 


ion, should be placed any statements which he may make 
in reference to aflairs in Nebraska. 

GEO. W. JONES. 

It is true this deponent was once a member of 
the Iowa Legislature, and while there I believe 
he supported the election of the Hon. George W. 
Jones to the United States Senate. Mr. Speaker, 
“ one good turn deserves another;” and the Sen¬ 
ator now comes to the rescue of his former con¬ 
stituent. 

The most charitable view of the matter is, that 
the Senator now speaks from a kindly recollec¬ 
tion of a former supporter, rather than from any 
intimate or exact knowledge of his private char¬ 
acter; and I do not hesitate to say that I could 
procure a dozen certificates of good men, who, 
though not United States Senators, yet, from an 
intimate knowledge of Sharp’s private and pub¬ 
lic character, by a residence in the same toivn with 
him for three or four years, and who thereby 
would, perhaps, be as capable judges of his char¬ 
acter, as he has established it in the West, as the 
honorable Senator, who has, perhaps, only casu¬ 
ally met him from time to time since his return 
to the United States Senate, which would prove 
directly the reverse of what the honorable Senator 
thinks is due to this deponent’s credibility. Sen¬ 
ators may be mistaken, as well as other men. 

I impute to the honorable Senator no intention 
to willfully misrepresent tlie character of deponent; 
but I do claim that, in his zeal to sustain his friends, 
the sitting Delegate, and the deponent, he has 
greatly mistaken deponent’s private character, as 
understood and known by myself and his imme¬ 
diate neighbors. 

Having thus, as briefly as possible, shown why 
this exparte secret evidence should be rejected by 
the House, and not be permitted to have any 
weight in determining this case, I will proceed to 
notice the testimony which was submitted to the 
Committee of Elections, where it could be seen 
and inspected by either party, and which, I think, 
should govern the House in their judgment and 
decision of this contest. 

It will be noticed, that all the testimony which 
I have introduced to the committee is in deposi¬ 
tions, taken in conformity to the act of Congress 
of 1851, after giving the sitting Delegate the re¬ 
quisite legal notice, &c., or in copies of records 
properly certified to. My evidence is all, there¬ 
fore, legal, and could be introduced into a court 
of law; whilst that of the sitting Delegate is all 
exparte affidavits, or extracts from partisan news¬ 
papers of the Territory, or extra-judicial certifi¬ 
cates, none of which can be considered legal tes¬ 
timony in a court of law or before this House. 

It will be borne in mind that the sitting Del¬ 
egate admits that 1 received a majority of all the 
votes in the Territory, (see page 58, majority 
report,) but charges some of the votes 1 received 
to be illegal. Now, I ask, after his admitting me 
to have received a majority of all the votes in the 
Territory, does it not devolve upon him to show 
and to prove the fact, if any of my votes were 
illegal? Is he not, before this House, as much 
bound by his solemn admissions as he would be 
in a court of law? I think he is; and taking this 
to be a conceded point, I will go on to examine 


(wherein he has tried to prove any of my ad- 
' mitted majority of votes in the Tt'rritory to be 
illegal; and in doing this, 1 have to deal with the 
evidence and the arguments which the sitting Del- 
; egate brought before the committee when the 
( case was being heard, and excepting, what I have 
before said, pass over in silence his secrety ex 
parte, would-be testimony, which first met my gaze 
: in and through the minority report, and which I 
I trust the House will reject as unworthy of con- 
! sideration. 

I The first thing, then, which I shall call your 
! attention to, is the vote of l)e Soto precinct, in 
I Washington county. The other two precincts in 
j this county—Cuming City and Fort Calhoun— 
although open to nearly the same objections as 
De Soto, yet I shall pass them over in silence. 

: They both gave small majorities to Chapman, 
j In this connection I beg the indulgence of the 
I House to read the sitting Delegate’s objection to 
j the De Soto return, and the proof he oilers; and 
also the evidence by which I sustain this vote. 

I On page 41 of the majority report, Mr. Chap¬ 
man says: 

“ That ‘ it is essential that a poll-book should be kept,’ is 
admitted by contestant in his statement filed on the 14th 
i instant. That one should be transmitted to the county 
j clerk is required by section fourteen of the election law. 

I 'I'hat one was kept at the De Soto precinct, I deny ; myself 
] or agent have never been shown one, though often solicited, 

' and even dimied a list of the names of the persons who are 
' claimed to have voted at said precinct. Tliat nonewasre- 
i turned to the county clerk or judge of probate, is shown by 
the register of Washington county in his return to the sec¬ 
retary, a copy of which appears among the papers filed by 
contestant. 

“ It is true, contestant has filed a paper purporting to be a 
copy of a poll-book kept at said De rtoto at the election 
aforesaid, and endeavors to establish its authenticity by an 
affidavit, taken exparte before D. McDonald, probate judge 
of said county. To an ex parte statement, made by one of 
the conspirators before one of his confederates to prove a 
material point in this case, 1 certainly object, and especially 
so when said pretended copy of poll book conflicts in its 
statement of the officers of the board of election with a cer¬ 
tified copy furnished me by the registerofsaid Washington 
county of the return made to said register from said DeSoto 
precinct, and which I now submit, (marked No. 4;) and 
further, sections four and five of tlie act regulating elections 
heretofore referred to, require that the ‘ board of election 
shall have the qualification of electors at each election pre¬ 
cinct,’ which was not the case in this instance, if the 
names given in the certificates above referred to are cor¬ 
rect.” 

On page 19 of the report you may see the three 
extra-judicial certificates of the register. They 
are too long for me to now read. These are extra- 
\ judicial clearly. The register had just before 
' given the certified abstract of the vote of the 
whole county as canvassed by the county can- 
j vassers, and which the law made it his duty to 
send to the secretary of the Territory. Anything 
further, as a part of the return from him, was not 
called for by the law. That a poll-book was kept 
at De Soto, I have clearlye.stablishod, as maybe 
seen by reference to the legal certificate of one of 
the judges of that precinct who, by the law, is 
made the legal custodian of one of the poll-books, 

' whose official character is established by the cer¬ 
tificate of D. McDonald, judge of probate for that 
county, who, by law also, i.s authorizccT to make 
such certificates,and to McDonald’s official char¬ 
acter, see on page 34, the certificate of T. B. Cum- 












11 


ing, Secretary of the Territory. He, by law, is 
the proper territorial officer to hold the certificates 
of election of all judges of probate, and to make 
the certificate of the fact of their yet acting, &c. 

After setting out a full list of the names of the 
votes, the judges and clerks of the precinct, with 
the certificate ofS. Cass, the acting probate judge, 
of their qualification to act as said officers, &c., 
on page 32, we read: 

De Soto Precinct, 

Waskinalon County, Territory of Nebraska: 

I hereby certify that I was one of the legally-appointed 
and authorized judges of election at I)e Soto precinct, and 
acted as such on the 6th day of November, A. D. 1855, when 
candidates for Delegate to Congress, representatives, and 
other officers, were voted for, and that the foregoing is a 
true copy of the poll-book, containing the names of per¬ 
sons who voted at said precinct of De Soto on the said 6th 
day of November, A. I). 1855. 

Given under my hand this loth day of Februarv, A. D. 1855. 

LEVI YEOMAN, 
Judge of Election. 

County of Washington, Territory of Nebraska, ss : / 

[ henffiy certily that Levi Yeoman was one of the legall)'- 
appointed and authorized judges of the election held at 
De Soto precinct, in Washington county, Nebra.«ka Terri¬ 
tory, and acted as such on the 6th day of November, A. D. 
1855, when candidates for delegate to Congress, representa¬ 
tives, and other officers, were voted for at said precinct. 

Given under my hand and seal this 15th day of February, 
D. 1855. 

[L. s.] D. McDonald, 

Judge of Probate in and for Washington county, N. T. 

I hereby certify that D. McDonald, whose name appears 
above, was duly elected probate judge for the county of 
Washington, in Nebra.ska Territory, at the election held in 
said county, November 6, 1855, and is now acting as said 
probate judge. 

Witness my hand and the great seal of the Territory, 
r, c 1 Omaha City, this 16th day of February, A. D. 

1856. T. B. CUMING, 

Secretary of Nebraska Territory. 

Such is the chain of record testimony termed 
by the sitting Delegate ex parte! And such is the 
testimony sought to be overthrown by extra¬ 
judicial certificates. 

Just in this connection, 1 will read an extract 
from the Book of Contested-Election Cases, on 
page 116—the case of David Bard, of Pennsylva¬ 
nia—in which it was held that, “ Where the final 
return is informal, the committee may call for 
primary returns; and, from them, make an esti¬ 
mate of the votes, as the Judges themselves might 
have done; provided, the election itself was reg¬ 
ularly held.” 

This poll-book is a pj-imnri/return, and this is a 
pertinent authority to establish my right to have 
this vote counted for me. The sitting Delegate’s 
empty assertions, unsupported by any evidence 
whatever of illegality in the conduct of this poll, 
will not surely outweigh my record testimony in 
the production of the poll-book itself well authen¬ 
ticated , 

I therefore conclude the vote at this precinct 
should be counted, which gives me undoubtedly 
a majority of five in Washington county, just as 
he return shows. 

1 pass on to notice, rficxt, the vote of Richard¬ 
son county. In this county the sitting Delegate 
relies solely on the affidavit of his friend, the 
Hon. J. L. Sharp, before referred to by me; this 
i.s all the attempt helms made at testimony to take 


from me the vote of this county- He offers none 
other. He has none. Why did he not heed my 
notice to him, and appear in this county, when I 
took testimony there under the regulations of the 
law of 1851 ? 1 took depositions there concerning 
the election. He took an affidavit here, in this 
city, without notice to me, and after the majority 
report was made and printed. The question is, 
will the House consider and rely upon ex parte 
testimony.? If it does, I may as well at once 
give up beaten, and go home. I should have this 
only to gratify me, that 1 had learned something 
new, which may be of great benefit and service 
to me hereafter—viz: the supreme efficacy of ex 
parte affidavits of partisan friends in determining 
one’s legal rights. My experience herein would 
then be a living example of what the poet sung— 

“ There’s wit there ye’ll get there— 

Ye’ll fiiiA nae other ichere.” 

For where else, surely, can it be found, except 
in this single case of my own experience, that 
ex parte affidavits were held to be good evidence? 

But I rest assured the House will not give the 
least heed to this extraordinary testimony. That 
being set aside, I ask, what is there to prevent 
the vote of this county being counted for me? 
There is nothing, just nothing, in the mind of 
any member, but the objection founded on the 
alleged illegality of voters from the half-breed 
land. This question of law, so ably argued in 
the majority report, I do not propose further to 
touch. I have argued it elsewhere. And I have 
only to say concerning it, that its determination 
is not necessary to a decision of the case. If 
those votes are legal, it only increases my major¬ 
ity. I have a majority of votes without the nine¬ 
teen or twenty from that tract. 

It appears on the face of the returns, and has 
not been impeached by testimony to the contrary, 
to wit: “ that the votes on the half-breed lands 
were not counted,” and my vote in that county 
hence, without those twenty, was seventy-six, 
and Chapman’s thirty-six, giving me forty major¬ 
ity; and which, even admitting all the other votes 
claimed by the sitting Delegate, would leave me 
in a plain majority of thirteen in the Territory. 

I may be permitted in this connection to refer 
to, and read what I have elsewhere said on this 
point: 

“ Among the papers filed by me, (No. 1 of my evidence, 
leaf 12 in the manuscript,) being the paper referred to by 
Mr. Chapman in his statement of March 17, is the follow¬ 
ing statement m.ade by the secretary of the Territory, in 
reference to Richardson county, to wit: 

‘Among the returns for county officers, the following 
note appears: “ Note.—'No certificate was given for treas¬ 
urer, A. Shelly having received the votes on the half-breed 
land.’” 

“ The same officer, viz : tlic judge of probate, who can¬ 
vassed the votes for Delegate to Congress, canvassed also 
the votes for county treasurer, and certified his doings to 
the territorial authorities. It is evident, from the above 
quoted note, which he appended to his return in relation to 
county treasurer, that he recognized the voters on the half- 
breed lands as 7iot entitled to vote, and would not grant a 
certificate founded on their votes. I’his confirms his other 
certificate, that their votes, ‘ estimated at twenty,’ were 
‘ not counted’ in making up the ab.stract of the votes for 
Delegate to Congress. 

“ But again, the total number of while males of twenty- 
one and upwards in the whole Territory, as shown by a 
copy of the census returns liled by Mr. Chapman, was 


% 


# 









12 


one thousand four hundred and sixty-seven, exclusive of 
those on this half breed tract; and tlie number of such 
white males in Richardson and Pawnee counties, exclu¬ 
sive of the half-breed tract, Avas one hundred and forty- 
three. 'I’he total vote of the Territory at the election of the 
6th of November last, wiis one thousand one hundred and 
ninety-eight. The vote of Richardson and Pawnee coun¬ 
ties, exclusive of the half-breed tract, on the same ratio of 
the vote to the miinber of white males over twenty-one 
years of age, should have been between one hundred and 
twenty-one and one hundred and twenty-two. This, 1 
think, is confirmatory of the statement of the judge of pro¬ 
bate, that the twenty votes from the half-breed tract were 
‘ not counted,’ and included in one hundred and twelve 
votes returned for Delegate to Congress. 

“ These twenty votes thrown by persons resident on the 
said tract were given for me. I'liis has been assumed in 
the conducting of the cases on both sides, and is expressly 
charged by Mr. Chapman, in his answer to my notice of in¬ 
tention to contest the seat. 

“ 1 now say, that those votes do not appear to have been 
counted, but tliat they ought to have been counted, (and 
allowed for me by his own admission,) whereby my plu¬ 
rality would, on the face of the returns, be increased from 
thirteen to thirty-three.” 

To remove all doubt as to the certainty of my 
majority in the Territory, I will turn- briefly to 
the vote of Dacotah county, which will most con¬ 
clusively establish the fact of my having still left 
a majority, even admitting all the sitting Delegate 
claims relative to the rejection of the votes from 
the half-breed land. 1 again read from my last 
argument, (p. 70:) 

“ 1. The Dacotah county return (so called) is a return, in 
fact, from • Omaha Creek precinct,’ made directly to the 
secretary of the Territory, without passing through the 
county register’s hands, or without any preliminary exam¬ 
ination whatever by the county canvassers. 

“2. It is unaccompanied by any poll-book. 

“ 3. It is made from a precinct, or place of voting, not 
know'll to the law, and not named in the Governor’s proc¬ 
lamation. (Vide paper No. 1, filed by Mr. Chapman.) The 
only precinct in that county known to the law, by being 
named in the Governor’s proclamation, is Dacotah City; 
and, according to my best information, that place is distant 
eighteen or twenty miles from the place called ‘ Omaha 
Creek precinct.’ 

“4. The vote, as returned, was unanimous for Mr. Chap¬ 
man—twenty-five votes for him, and none for me, or any¬ 
body else. That fact alone is suggestive of fraud; and, 
when we take into consideration that voters went to another 
place than the one apjiointed by law' in that county—that 
the votes were given all one way—that the returns are con¬ 
ceded to have been made ‘ illegally’ —and that Mr. Chap¬ 
man does not attempt to sustain this vote lor himself—must, 
1 presume, be taken that this spurious vote ought to be 
rejected.” 

Will any one -contend that the vote of a pre¬ 
cinct, not established by law, and the election 
held at it in violation of law, should be counted. 
What says the Governor’s proclamation about 
this matter.^ On pages 43 and 44 of the majority 
report we read what.? 

Said precincts being as follow's : In the county of Rich¬ 
ardson, Archer and Salem ; in the county of Pawnee, Paw¬ 
nee ; in the county of Nemaha, Brownvilic ; in the county 
of Otoe, Nebraska City, Bennett’s Ferry, and Wyoming; 
in the county of Cass, Rock BlulTand Plattsmouth ; in the 
county of Douglas, La Platte, Bellcview, Omaha City, 
and Florence ; in the county of Washington, Fort Calhoun, 
De Soto, and Cuming City; in the coutity of Burt, Teka- 
mah ; in the county of Dodge, Fontcnelle and Elk Horn 
City ; in the county of Dacotah, Dacotah City.” 

Now, sir, 1 say that the election was not held 
at Dacotah City, in Dacotah county. I again read 
from the majority report on page 17: 

The following is a true and correct copy of the returns 
made to me, and on file in my office, from Omaha Creek 
precinct, Dacotah county, Neiiraska Territory, in relation 
to the election of Delegate to Congress from this Territory: 


“Omaha Cukek Precinct, 
Dacotah County, N. T., November 6, 18.55. 

“ At an election held at the house of Jlorr and Woods, in 
Omaha Creek precinct, in the county of Dacotah, and 1 
ritory of Nebraska, on the 6th day of November, A. D. 18.X5, 
the following named persons received the number ot votes 
annexed to their resjiective names lor the following de¬ 
scribed offices: ^ , 

“ Bird B. Chapman had twenty-five votes for Delegate to 

.-OIIAIINCEYHORK, 

“JOHN SA.MUELS, 
“GEORGE T. WOODS, 

Judges of Election. 

“ Attest: 

A. W. PUETT, ) Election.” 

R. G. Alexander, ) 

T. B. CUMING, 
Secretary of Nebraska Territory. 

This plainly shows that the election was held 
at Omaha Creek precinct, a place several miles 
distant from Dacotah City. Here is a map of 
that vicinity, which accidentally fell into my pos¬ 
session recently, which shows the relative situa¬ 
tion of Horrs, where the election was held, and 
Dacotah City, where it should have been held. 
The proclamation of the Governor—the return, 
from this spurious precinct, the negation of the 
vote by the territorial canvassers—the fact that 
Mr. Chapman, neither by evidence nor argument, 
attempts to sustain the vote from Dacotah county, 
it seems to me is very conclusive that it was a 
spurious vote, which he himself does not think 
should be added to his count, and which must be 
left out by the House in their estimate. Reject¬ 
ing these twenty-five votes from Dacotah county, 
it leaves me with at least nineteen majority in th<# 
Territory, even after conceding to him all he 
claims with regard to the half-breed question, a 
thing which, by the way, I am very far from 
doing. 

In this view of the case, then, the vote would 
stand as follows: 


Counties. 

Bennet. 

Chapman. 

Others 

Douglas . 


259 


Burt'. 

. 19 

14 

1 

Dodge. 


17 

7 


.94 

33 

4 

Nemaha. 

. 56 

57 

4 

Washington. 

Dacotah, rejected. 

.44 

39 

19 

Otoe . 

.176 

95 

Pawnee. 


- 


Richardson. 

.76, 19, 57 

36 



■ 1. - 

--- 

— 

Majority for Bennet. 

569 

559 

. 19 

550 

a5 


But restoring to the count the nineteen from the 
half-breed lands, which the minority report claim? 
should be excluded, it would increase my major¬ 
ity to thirty-eight;to which, if you add the twenty 
votes of persons of this half-breed land, which 
the judge of probate of that county certifies “ wen; 
not counted,’ ’ and which I claim should be allowed 
me by this House, it will increase my majority to 
fifty-eight. 

Hence you see that, by counting all the votes 
on the face of the return*, my majority is thi*’- 
teen, and rejecting all that is claimed to be illegal 
by either of us, my majority is nineteen; and, 
counting the vote on the half-breed land, my majority 
is fifty-eight. 






























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